IN THE SUPREME COURT OF FLORIDA
AMOS LEE KING,
Petitioner,
v.
Case No. SC02-2
MICHAEL W. MOORE,
Respondent.
_____________________________/
RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS
COMES NOW, Respondent, MICHAEL W. MOORE, by and through the
undersigned Assistant Attorneys General, and hereby responds to the
Petition for Writ of Habeas Corpus filed in the above-styled case.
Respondent respectfully submits that the petition should be denied,
and states as grounds therefor:
FACTS AND PROCEDURAL HISTORY
The facts of this case are outlined in this Court’s opinion on
direct appeal, King v. State, 390 So. 2d 315, 316-17 (Fla. 1980):
On March 18, 1976 [sic], the appellant was an
inmate at the Tarpon Springs Community
Correctional Center, a work release facility,
serving a sentence for larceny of a firearm.
On this date a routine bed check was made by
James McDonough, a prison counselor, at about
3:40 a. m. The appellant King was absent from
his room. The counselor began a search of the
building grounds and found the appellant
outside the building. Appellant was wearing
light-colored pants which had the crotch
portion covered with blood. The counselor
directed King back to the office control room
inside the building.
When the counselor
turned to get handcuffs, King attacked him
with a knife.
A struggle ensued, and the
counselor received several cuts and stab
wounds. King left the office, then returned
and found the counselor talking to his
superior on the phone.
He stabbed the
counselor again and cut the telephone cord.
At approximately 4:05 a. m., the police
and fire personnel arrived at the scene of a
fire at a house approximately 1500 feet from
the correctional center.
The police officers
discovered the body of Natalie Brady. She had
received two stab wounds, bruises over the
chin, and burns on the leg.
An autopsy
revealed
other
injuries,
which
included
bruises on the back of the head, hemorrhaging
of the brain, hemorrhaging of the neck, and
broken cartilage in the neck.
There was a
ragged tear of the vagina, apparently caused
by the wooden bloodstained knitting needles
which were found at the scene, as well as
evidence of forcible intercourse. Appellant’s
blood type was found in Brady’s vaginal
washings.
The medical examiner attributed
Mrs. Brady’s death to multiple causes and
established the time of death as 3:00 a.m.
Arson investigators concluded that the fire
was intentionally set at approximately 3:00 to
3:30 a.m.
Petitioner King was charged by an indictment filed on April 7,
1977, with first degree murder, sexual battery, burglary, and
arson.
These charges were ultimately consolidated with charges of
attempted first degree murder and escape that had been previously
filed based on King’s actions at Tarpon Springs Correctional
Center.
Following a jury trial before the Honorable John S.
Andrews, Circuit Court Judge, he was convicted as charged and
2
sentenced to death.
On
direct
appeal
to
this
Court,
FSC
#52,185,
King
was
represented by Assistant Public Defender W.C. McLain. McLain filed
a 67-page brief raising the following issues:
POINT I: WHETHER THE TRIAL COURT ERRED IN CONSOLIDATING
THE INDICTMENT CASE, CHARGING FIRST DEGREE MURDER,
INVOLUNTARY SEXUAL BATTERY, ARSON AND BURGLARY, WITH THE
INFORMATION CASE, WHICH CHARGED ATTEMPTED MURDER AND
ESCAPE, ON THE FIRST DAY OF TRIAL FOR THE INFORMATION
CASE?
POINT II: WHETHER THE TRIAL COURT ERRED IN ALLOWING
TELEVISION AND STILL CAMERAS TO REMAIN IN THE COURTROOM
DURING TRIAL AND DENYING APPELLANT’S OBJECTIONS TO THEIR
DISTRACTING EFFECT ON THE ATTORNEYS AND JURORS AND HIS
MOTIONS FOR A MISTRIAL?
POINT III: WHETHER THE TRIAL COURT ERRED IN EXCUSING
PROSPECTIVE JURORS FOR CAUSE BECAUSE OF THEIR EXPRESSED
BELIEF AGAINST THE DEATH PENALTY?
POINT IV: WHETHER THE TRIAL COURT ERRED IN REFUSING TO
PERMIT DEFENSE COUNSEL TO ASK PROSPECTIVE JURORS ON VOIR
DIRE EXAMINATION IF THEIR BELIEFS THAT CERTAIN CRIMES
SHOULD CARRY A MANDATORY DEATH PENALTY?
POINT V: WHETHER THE TRIAL COURT ERRED IN IMPOSING A
SEPARATE JUDGMENT AND LIFE SENTENCE FOR INVOLUNTARY
SEXUAL BATTERY, SINCE THIS WAS THE SAME SEXUAL BATTERY
UNDERLYING THE FELONY FIRST DEGREE MURDER CONVICTION?
POINT VI: WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION TO SUPPRESS HIS STATEMENTS GIVEN TO
DEPUTIES BRAGDON AND PONDAKOS, SINCE APPELLANT ASKED FOR
A LAWYER BEFORE QUESTIONING?
POINT VII: WHETHER THE TRIAL COURT ERRED IN SENTENCING
APPELLANT TO LIFE IN PRISON FOR ATTEMPTED MURDER?
POINT VIII: WHETHER THE TRIAL COURT ERRED IN FINDING AND
CONSIDERING THE AGGRAVATING CIRCUMSTANCE OF KNOWINGLY
CREATING A RISK OF DEATH TO MANY PERSONS BECAUSE
APPELLANT COMMITTED AN ARSON AFTER THE MURDER OF NATALIE
BRADY?
3
POINT IX: WHETHER THE TRIAL COURT ERRED IN FINDING,
CONSIDERING AND WEIGHING THE NON-STATUTORY AGGRAVATING
CIRCUMSTANCE THAT APPELLANT ATTACKED A CORRECTIONAL
COUNSELOR AFTER THE MURDER?
POINT X: WHETHER THE TRIAL COURT ERRED IN FINDING AND
WEIGHING THE AGGRAVATING CIRCUMSTANCE THAT THE MURDER WAS
HEINOUS, ATROCIOUS AND CRUEL?
POINT XI: WHETHER THE TRIAL COURT ERRED IN IMMEDIATELY
IMPOSING
THE
DEATH
PENALTY
AFTER
THE
JURY’S
RECOMMENDATION WITHOUT TAKING TIME TO DELIBERATE OVER HIS
DECISION?
SUPPLEMENTAL ISSUE: SECTION 921.141, FLORIDA STATUTES
RESTRICTS THE MITIGATING CIRCUMSTANCES TO BE CONSIDERED
TO THOSE ENUMERATED IN THE STATUTE IN VIOLATION OF THE
EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
This Court affirmed King’s conviction and sentence of death.
King v. State, 390 So. 2d 315 (Fla. 1980), cert. denied, 450 U.S.
989 (1981).
King sought postconviction relief in the trial court.
After the trial court entered an order denying Petitioner’s motion,
King appealed to this Court and requested a stay of his execution.
This Court affirmed the trial court’s denial of postconviction
relief and also denied King’s request for a stay of his execution.
King v. State, 407 S0. 2d 904 (Fla. 1981).
In 1981, King filed a petition for writ of habeas corpus in
the United States District Court, Middle District of Florida.
On
February 1, 1982, District Judge William J. Castagna denied King’s
petition for writ of habeas corpus.
King was eventually awarded
a new sentencing proceeding from federal court based on a finding
of ineffective assistance of counsel during the penalty phase of
4
his trial.
King v. Strickland, 748 F.2d 1462 (11th Cir. 1984),
cert. denied, 471 U.S. 1016 (1985), previous history, 714 F.2d 1481
(11th Cir. 1983).
The resentencing proceeding commenced on November 4, 1985,
before the Honorable Philip J. Federico, Circuit Court Judge.
the
conclusion
of
the
resentencing,
a
unanimously recommended the death penalty.
twelve
person
At
jury
On November 7, 1985,
Judge Federico imposed a sentence of death, finding that five
aggravating circumstances (murder committed by a defendant under
sentence of imprisonment; murder committed by a defendant with
prior violent felony convictions; defendant knowingly created a
great risk of death to many persons; murder committed during a
burglary and sexual battery; and murder committed in an especially
heinous,
atrocious,
or
cruel
manner),
and
no
mitigating
circumstances applied.
In his direct appeal, King was represented by Baya Harrison,
and raised four issues: 1) the prosecutors’ exercise of peremptory
challenges
on
black
prospective
jurors;
2)
the
exclusion
of
evidence of residual doubt of King’s guilt; 3) the exclusion of
evidence of a discriminatory application of the death penalty; and
4) the admission of hearsay testimony.
This Court struck reliance
on the aggravating factor of great risk of death to many persons,
but affirmed the death sentence.
King v. State, 514 So. 2d 354
(Fla. 1987), cert. denied, 487 U.S. 1241 (1988).
5
A motion for postconviction relief was filed in the trial
court, and ultimately an evidentiary hearing was held before the
Honorable Susan F. Schaeffer, Circuit Court Judge, on two of the
claims presented in the motion: ineffective assistance of counsel
and inadequate mental health assistance.
Judge Schaeffer denied
the motion for postconviction relief and this Court affirmed the
denial of relief.
King v. State, 597 So. 2d 780 (Fla. 1992).
During the litigation of this postconviction motion, King
filed a state petition for habeas relief with this Court.
In his
petition, King raised the following claims:
CLAIM I: THE TRIAL COURT ALLOWED THE STATE TO
INACCURATELY AND UNCONSTITUTIONALLY MINIMIZE THE JURY’S
SENSE OF RESPONSIBILITY FOR THEIR SENTENCING DECISION,
INSTRUCTED THE JURY IN A WAY WHICH GAVE THE COURT
IMPRIMATUR TO THE STATE’S MISINFORMATION, AND ERRONEOUSLY
REJECTED DEFENSE COUNSEL’S REQUEST THAT THE JURY BE
ACCURATELY AND COMPLETELY INSTRUCTED REGARDING ITS ROLE
IN THE CAPITAL SENTENCING PROCESS, IN VIOLATION OF THE
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS, AND APPELLATE
COUNSEL WAS PREJUDICIALLY INEFFECTIVE FOR FAILING TO
RAISE THIS ISSUE ON DIRECT APPEAL.
CLAIM II: THE TRIAL COURT VIOLATED THE PRINCIPLES OF
HITCHCOCK V. DUGGER, 107 S. CT. 1821 (1987), AND LOCKETT
V. OHIO, 438 U.S. 386 (1978), WHEN IT PRECLUDED MR. KING
FROM
CONSIDERING
EVIDENCE
ESTABLISHING
MITIGATING
CIRCUMSTANCES AND REBUTTING AGGRAVATING CIRCUMSTANCES, IN
DEROGATION OF MR. KING’S RIGHTS TO AN INDIVIDUALIZED AND
RELIABLE CAPITAL SENTENCING DETERMINATION AND TO THE
EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.
CLAIM III: MR. KING’S SENTENCE OF DEATH WAS RENDERED
FUNDAMENTALLY UNRELIABLE AND UNFAIR BY THE RESENTENCING
COURT’S REFUSAL TO FIND MITIGATION WHICH HAS BEEN IN FACT
FOUND BY THE ORIGINAL SENTENCING COURT, AND AFFIRMED ON
THE ORIGINAL APPEAL, IN VIOLATION OF THE FIFTH, SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS.
6
CLAIM IV: MR. KING’S RIGHTS TO AN INDIVIDUALIZED AND
RELIABLE CAPITAL SENTENCING DETERMINATION WERE DENIED BY
THE SENTENCING COURT’S REFUSAL TO ALLOW ACCURATE EVIDENCE
AND TO PROVIDE INSTRUCTIONS REGARDING THE CONSEQUENCES OF
THE JURY’S VERDICT, IN CONTRAVENTION OF THE SIXTH, EIGHTH
AND FOURTEENTH AMENDMENTS.
CLAIM V: THE TRIAL COURT’S ADMISSION OF UNCONFRONTABLE,
UNREBUTTABLE RANK HEARSAY AT MR. KING’S SENTENCING
PROCEEDING VIOLATED HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS
UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.
CLAIM VI: THE RESENTENCING COURT RELIED ON NON-RECORD
“EVIDENCE,” EVIDENCE WHICH MR. KING HAD NO OPPORTUNITY
TO REBUT, WITHOUT ANY NOTICE TO MR. KING THAT SUCH
“EVIDENCE” WOULD BE CONSIDERED, IN CONTRAVENTION OF THE
FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.
This Court denied King’s habeas petition.
King v. Dugger, 555 So.
2d 355 (Fla. 1990).
King initiated federal review of his resentencing on October
30, 1992, by filing a petition for writ of habeas corpus in the
United States District Court, Middle District of Florida, raising
sixteen claims.
Relief was denied and on appeal the Eleventh
Circuit discussed two primary issues: whether this Court conducted
a proper reweighing or harmless-error analysis after striking
aggravating factors on appeal, and whether King was entitled to a
new sentencing hearing due to the prosecution’s exercise of racebased peremptory strikes.
The Eleventh Circuit determined the
first issue to be procedurally barred and rejected the second issue
as meritless.
King v. Moore, 196 F.3d 1327 (11th Cir. 1999), cert.
denied, 531 U.S. 1039 (2000).
On November 19, 2001 Governor Jeb Bush signed a third death
7
warrant for King and execution is scheduled for January 24, 2002.
On December 18, 2001, King filed a successive motion to vacate,
request for an evidentiary hearing, and request for a stay of
execution (R.
V4/586-617).
The
State
filed
its
response
on
December 20, 2001, and a Huff hearing was held on December 21, 2001
(R. V7/1042-1152).
On January 1, 2002, Judge Schaeffer entered an
order denying all relief (R. V4/618-708).
In addition to his
appeal from the trial court’s denial of his successive postconviction motion, King has filed with this Court the instant
petition for writ of habeas corpus.
STATEMENT REGARDING PROCEDURAL BARS
This is King’s second petition for writ of habeas corpus filed
in this Court.
Any issue which was or could have been raised in
his prior petition is clearly procedurally barred.
Of the eleven
claims raised in the instant petition, the first eight claims
allege that King was provided ineffective assistance of counsel
during his
initial
direct
appeal,
which
was
denied
in
1980.
Because King’s prior habeas petition, filed in 1988, asserted
claims
of
ineffective
assistance
of
counsel
and
could
have
presented the claims raised herein, he is barred from arguing new
allegations of ineffective assistance of appellate counsel.
See
Lambrix v. Singletary, 641 So. 2d 847, 848 (Fla. 1994) (“Because
ineffective assistance of counsel claims have been considered and
8
rejected in a previous petition, Lambrix is procedurally barred
from raising such claims again in a subsequent habeas petition”);
Aldridge
v.
State,
503
So.
2d
1257
(Fla.
1987)
(defendant
procedurally barred from raising an ineffective assistance of
counsel claim when such a claim has been raised previously even
though the current claim is based on a different issue).
The fact
that King is challenging the performance of counsel in a different,
earlier appeal does not permit him to raise these claims piecemeal.
This Court has consistently and repeatedly stated that the
postconviction vehicle does not constitute a second appeal. Issues
that were or could have been raised on direct appeal or in prior
collateral proceedings may not be litigated anew, even if couched
in ineffective assistance of counsel language.
See Teffeteller v.
Dugger, 734 So. 2d 1009, 1025 (Fla. 1999) (holding that habeas
petition claims were procedurally barred because the claims were
raised on direct appeal and rejected by this Court or could have
been raised on direct appeal); Johnson v. Singletary, 695 So. 2d
263, 265 (Fla. 1996)(“All of Johnson’s twenty-three claims are
procedurally barred--because they were either already examined on
the merits by this Court on direct appeal or in Johnson’s 3.850
proceeding, or because they could have been but were not raised in
any earlier proceeding--or meritless.”); Medina v. State, 573 So.
2d 293 (Fla. 1990)(stating that it is inappropriate to use a
different argument to relitigate the same issue).
9
Thus, this Court should expressly reject Claims I - VIII in
the instant petition as procedurally barred.
ARGUMENT IN OPPOSITION TO CLAIMS FOR RELIEF
King’s habeas petition presents eleven issues, each of which
will be addressed in turn.
As will be seen, none of his claims
warrant the granting of habeas relief, and therefore his petition
for writ of habeas corpus should be denied.
Claim I
Appellate counsel was not ineffective for
failing to raise on direct appeal the trial
court’s ruling allowing a State witness to
testify that a stain on Mr. King’s clothing
was human blood.
King alleges that his appellate counsel was ineffective for
failing to raise on direct appeal the trial court’s ruling allowing
James McDonough to testify that when he located King outside the
correctional facility, King had what McDonough assumed to be human
blood on the crotch area of his pants.
Prior to McDonough’s
testimony, defense counsel moved in limine to prevent the witness
from expressing his opinion as to the nature of the stain on King’s
pants (DA-R. V8/1348-49).
The trial court did not make a ruling
because he wanted to hear the witness testify about his experience
in the funeral business as a licensed mortician.
During his direct examination, McDonough testified that he had
been a licensed mortician for approximately twenty-two years and
10
had observed and handled human blood in over 2,500 embalmings.
(DA-R. V/8 1352-54).
When the witness was about to testify about
his encounter with King outside the correctional facility, defense
counsel renewed his objection and the trial court ruled that, based
on the witness’s extensive experience in the funeral business, he
could “give an opinion as to what he saw as opposed to any normal
citizen.”
(DA-R. V/8 1377).
The witness subsequently testified
that he saw the crotch area of King’s pants soaked in human blood;
“I would assume it to be human blood from my experience as a
funeral director.”
(DA-R. V/8 1379).
King argues that the witness’s opinion usurped the province of
the jury and that appellate counsel was ineffective for failing to
raise this issue on direct appeal.
Obviously, this issue could
have been raised in King’s prior habeas petition; accordingly, this
issue is procedurally barred.
Even if not barred, King has failed
to establish that counsel’s failure to raise this issue was so
deficient
that
it
fell
outside
the
range
of
professionally
acceptable performance and, if so, whether the deficiency was so
egregious that it undermined confidence in the correctness of the
result.
Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000);
Groover v. Singletary, 656 So. 2d 424, 425 (Fla. 1995); Byrd v.
Singletary, 655 So. 2d 67, 68-69 (Fla. 1995).
The prosecutor in the instant case established the witness’s
“specialized knowledge” in order to render an expert opinion.
11
Florida Statutes, section 90.702 (1977), Testimony by experts,
stated:
If scientific, technical, or other specialized knowledge
will assist the trier of fact in understanding the
evidence or in determining a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education may testify about it in the form
of an opinion; however, the opinion is admissible only if
it can be applied to evidence at trial.
Here, James McDonough testified that he had been involved in his
family’s funeral business since childhood. He had formal education
in the area and had been a licensed mortician in the State of New
York
for
over
twenty-two
years.
During
that
time,
he
had
participated in approximately 2,500 embalmings and was experienced
in handling human blood.
Based on this specialized training and
experience, the trial judge allowed him to express an expert
opinion.1
Additionally, it should be noted that the witness
testified that he “would assume it to be human blood” based on his
experience
as
a
funeral
director.
Thus,
contrary
to
King’s
assertions, the witness’s testimony that he assumed the stain on
King’s pants was human blood was not improper opinion evidence.
A review of the entire record demonstrates that neither
deficiency nor prejudice has been shown based on counsel’s failure
1
Although the witness was never officially termed an expert by the
court, it is clear from the judge’s ruling that the witness had
experience and training beyond that of a lay witness.
In
overruling defense counsel’s objection, the court stated, “if he
were an ordinary lay witness, an ordinary lay witness’s experience,
... the objection would be well taken.” (DA-R. V/8 1377).
12
to raise this nonmeritourious issue on direct appeal.
To the
contrary, the record reflects that appellate counsel acted as a
capable advocate, asserting a total of twelve issues for judicial
review.2
Clearly,
King’s
current
claim
would
not
have
been
successful even if presented in his direct appeal, and therefore
counsel was not ineffective for failing to present this issue.
Groover, 656 So. 2d at 425; Chandler v. Dugger, 634 So. 2d 1066,
1068 (Fla. 1994) (failure to raise nonmeritorious issues is not
ineffective assistance of appellate counsel).
Counsel would not
have been able to establish that the trial court clearly abused its
broad discretion in making this type of evidentiary ruling.
Mikenas v. State, 367 So. 2d 606 (Fla. 1978);
327 So. 2d 903 (Fla. 3d DCA 1976).
See
Rodriguez v. State,
Even if a finding of error had
been available on these facts, it could not have been harmful in
light
of
the
other
evidence
of
King’s
guilt.
In
addition,
McDonough could have testified, even as a lay witness, that King’s
pants appeared to be blood-stained, just as Doris DuBrian later
testified about seeing King later with wet and blood-stained
trousers (DA-R. V/9 1651-61).
Such testimony, and the reasonable
inferences therefrom, would have been just as devastating to King.
Thus, there could be no harmful error with regard to McDonough’s
2
On direct appeal, King filed a 67-page brief and simultaneously
moved to file a brief exceeding the 50-page limit.
This Court
granted the motion and accepted the brief.
King also filed a
supplemental brief raising an additional issue.
13
testimony that he assumed the stain on King’s pants was human
blood.
As this issue could have been raised in King’s prior habeas
petition, it should be denied as procedurally barred. Moreover, as
King cannot show that the confidence in the outcome of his appeal
is destroyed by the failure to raise this issue, his claim that
counsel was ineffective for failing to raise this issue on direct
appeal must be denied.
Claim II
Appellate counsel was not ineffective for
failing to raise on direct appeal the trial
court’s evidentiary ruling allowing James
McDonough to briefly testify about his family.
King next alleges that the trial court improperly overruled
defense counsel’s relevancy objection to James McDonough’s brief
testimony about his family, his employment background, and his
education, and that counsel was ineffective for failing to raise
this issue on appeal.
At trial, the State argued that King’s
statement to the deputy alluded to the fact that McDonough attacked
King, and the State wanted to introduce evidence of McDonough’s
background to allow the jury to determine whether he was the type
of person who would attack King (DA-R. V/8 1351).
The trial judge
overruled defense counsel’s objection and allowed the witness to
testify that he had four children aged 14 to 18 years old and the
oldest boy was on the list to go to West Point (DA-R. v/8 1351-52).
The
witness
also
testified
to
14
his
previous
law
enforcement
experience and his background and education in the funeral business
(DA-R. V/8 1352-54).
As previously noted, King’s failure to raise this issue in his
earlier habeas petition bars this issue from review by this Court.
Even if cognizable, King’s argument of ineffective assistance of
appellate counsel is without merit. King argues that the testimony
improperly bolstered the witness’s credibility by showing that he
was “a good father, hard working, educated and therefore a witness
to be believed.”
Petition for Writ of Habeas Corpus at 9-10.
The
witness’s educational background and prior work experience was
admissible and relevant evidence. King is unable to establish that
appellate counsel was deficient for failing to raise on direct
appeal the court’s ruling allowing McDonough to testify that he had
four children or that he was prejudiced in any manner by this
testimony.
Appellate counsel has a responsibility to review potential
claims and “winnow out” the weaker arguments, particularly when the
page limitation is already being exceeded.
Any potential claim as
to McDonough’s testimony in this regard could easily be rejected in
light of the clear lack of prejudice.
The mere fact that McDonough
had children is hardly prejudicial to King, as being a father does
not bestow
any
heightened
credibility
on
a
witness.
King’s
statements, admitted at trial, in fact placed McDonough’s character
in issue.
Of course, much of McDonough’s testimony was in fact
15
corroborated
by
other
witnesses.
Thus,
any
potential
error
available for appellate counsel would not be harmful. See Burns v.
State, 609 So. 2d 600, 606 (Fla. 1992) (improper character evidence
of law enforcement victim clearly harmless in guilt phase).
Thus,
King’s claim of ineffective assistance of appellate counsel for
failing to raise this issue is without merit.
Notwithstanding the foregoing, as this issue could have been
raised in King’s prior habeas petition, it should be denied as
procedurally barred.
Claim III
Appellate counsel was not ineffective for
failing to raise on direct appeal the trial
court’s ruling allowing Carlos Hudson to
testify that he heard James McDonough outside
the correctional facility locate King.
King next claims that appellate counsel was ineffective for
failing to raise on appeal an issue surrounding the trial court’s
evidentiary ruling allowing Carlos Hudson to testify that he
overheard James McDonough looking for Amos Lee King outside the
correctional facility, and heard McDonough say, “There you are.”
(DA-R. V/8 1441).
During the direct examination of Carlos Hudson,
King’s roommate at Tarpon Springs Community Correctional Center,
the witness testified that he went to bed around midnight and heard
King return to the room sometime later. Hudson testified that King
usually returned from work around two o’clock (DA-R. V/8 1435-37).
Mr. Hudson was subsequently awakened by voices around 3:30 in the
16
morning.
Mr. McDonough checked the room and was calling for King
(DA-R. V/8 1438-39).
The witness testified, without objection,
that he heard McDonough looking for King outside and then heard
McDonough say, “There you are.”
(DA-R. V/8 1439).
The prosecutor
continued to question Mr. Hudson about the events and when the
prosecutor again asked the witness what he heard McDonough say,
defense counsel objected based on “hearsay, repetitive testimony.”
(DA-R. V/8 1441).
The court overruled the objection and Hudson
again testified that he heard McDonough say, “There you are.” (DAR. V/8 1441).
King now argues that appellate counsel was ineffective for
failing to raise this issue on direct appeal.
Once again, this
claim is barred as it could have been raised in King’s prior habeas
petition.
In
addition,
the
issue
is
clearly
without
merit.
Defense counsel did not contemporaneously object to the witness’s
testimony
and
therefore
did
not
preserve
the
issue
with
his
subsequent objection based on repetition and hearsay. See Clark v.
State, 363 So. 2d 331, 335 (Fla. 1975) (applying contemporaneous
objection
rule
and
holding
that
defendant
waived
issue
for
appellate review because he failed to object to improper comment).
Appellate counsel cannot be deemed ineffective for failing to raise
a claim which was not properly preserved for appeal.
Dugger, 586 So. 2d 317, 318 (Fla. 1991).
clear
that
“habeas
corpus
petitions
17
are
Medina v.
This Court has made it
not
to
be
used
for
additional appeals on questions which could have been, should have
been, or were raised on appeal or in a rule 3.850 motion, or on
matters that were not objected to at trial.”
So. 2d 459, 460 (Fla. 1989).
Parker v. Dugger, 550
Thus, King obtain relief on these
facts.
Even if King could establish that this issue was preserved, he
is unable to establish any error based on the admission of this
oral statement.
Hudson testified that he shared a room with King,
and at approximately 3:30 in the morning, King was not in their
room during a bed check.
King in their room.
Hudson observed McDonough searching for
A few minutes later, Hudson heard McDonough
outside the facility through his open window.
Hudson then heard
the outside door open and observed King and McDonough walk by their
room towards the control room (DA-R. V/8 1437-42).
Hudson’s
testimony was not hearsay since it was not offered to prove the
truth of the matter asserted; the statement “there you are” does
not offer any truth where the “you” is not even identified.
Rather, it simply explains the logical sequence of events leading
to McDonough’s returning to the control room with King.
testimony
admitted.3
corroborated
McDonough’s
testimony
and
was
This
properly
Furthermore, no prejudice could be discerned even if
the statement is considered to be hearsay; even without this
3
Additionally, King gave a statement to law enforcement officers
wherein he admitted to exiting the building and returning with
McDonough. (DA-R. V/10 1758-59).
18
statement, the jury was aware that King was found by McDonough
outside the facility.
Since this issue would not have generated relief even if
argued on appeal, King cannot show deficiency or prejudice in
counsel’s failure to raise the claim.
He is not entitled to relief
on this issue.
Notwithstanding the foregoing, as this issue could have been
raised in King’s prior habeas petition, it should be denied as
procedurally barred.
Claim IV
Appellate counsel was not ineffective for
failing to raise on direct appeal the trial
court’s ruling allowing a law enforcement
officer to testify about an interview with
neighbors.
King also argues that his appellate counsel was ineffective
for failing to raise on direct appeal the trial court’s ruling
allowing Detective Bragdon to testify about Detective Pondakos’
interview
with
neighbors
regarding
garbage
pickup.
When
interviewed by the detectives, King claimed he dumped the clothes
he was wearing on the night of the murder in a garbage can of a
friend’s house at 1025 North Missouri Avenue (DA-R. V/10 1752).
The day after the murder, King directed the detectives to the house
and after searching the cans, King’s clothing was not located (DAR.
V/10 1753-57).
Detective Bragdon testified over defense
counsel’s hearsay objection that Detective Pondakos interviewed
19
neighbors and discovered that the garbage had not been picked up
(DA-R.
V/10 1754-55).
Once again, King’s claim could have been presented previously
and must be found to be procedurally barred at this point.
In
addition, any possible error would not have made a meritorious
appellate argument because it is, at most, harmless error.
See
Norton v. State, 709 So. 2d 87, 95 (Fla. 1997) (improper hearsay
testimony
regarding
law
enforcement’s
investigation
to
verify
defendant’s statements was harmless). Detective Bragdon could have
properly
testified
that,
pursuant
to
the
sheriff’s
office
investigation, an attempt was made to find the clothes based on
King’s statement but the clothes were not located.
additional
testimony
demonstrated
the
The fact that
thoroughness
investigation was hardly prejudicial to King.
of
the
Thus, King’s claim
of ineffective assistance of appellate counsel for failing to
assert this issue must be denied.
Claim V
Appellate counsel was not ineffective for
failing
to
raise
on
direct
appeal
an
unpreserved issue regarding the prosecutor’s
comments during closing argument.
During the guilt phase closing argument, the prosecutor made
the following comment:
I would like you to consider this.
The Judge will
instruct you the maximum penalty as to each particular
crime, the maximum, not the minimum, anyone could get
probation up to the maximum, is that unless you come back
guilty as charged which required even if he is not put to
20
death, a twenty-five year minimum sentence.
In other
words, for twenty-five years he couldn’t be paroled,
murder one. Every other crime that we have charged or
any lesser crime of the murder one, like murder two or
murder three or manslaughter, all have provisions for
parole and Amos Lee King is walking back out on the
streets or down at another work release center doing the
same thing he did before.
(DA-R.
V/11 1952-53).
King never objected to the prosecutor’s
comment or moved for a mistrial.
Now, almost twenty-five years after the fact, King asserts for
the first time that his appellate counsel was ineffective for
failing to raise as a claim on direct appeal that the prosecutor’s
statements improperly argued future dangerousness by informing the
jury that King would be right back out on the streets committing
the same crimes.4
At no time, however, did the prosecutor argue to
the jury that King would be out on the streets committing similar
crimes.
The prosecutor merely commented that if paroled, King
could again be returned to a work release center where he could do
“the same thing he did before,” i.e., basically free and not
suffering any serious consequences for his actions.
As has been noted repeatedly, this claim could have been
raised previously and must now be found barred.
prosecutor’s
comments
in
the
4
instant
In addition, the
case
are
clearly
As previously noted, this Court has made it clear that “habeas
corpus petitions are not to be used for additional appeals on
questions which could have been, should have been, or were raised
on appeal or in a rule 3.850 motion, or on matters that were not
objected to at trial.” Parker v. Dugger, 550 So. 2d 459, 460 (Fla.
1989).
21
distinguishable from the comment made in Grant v. State, 194 So. 2d
612, 613 (Fla. 1967), relied upon by King, wherein the prosecutor
said: “Do you want to give this man less than first degree murder
and the electric chair and have him get out and come back and kill
somebody else, maybe you?” (emphasis added).
Unlike the situation
in Grant, the prosecutor in the instant case was not imploring the
jury to find King guilty so he could not kill someone else again,
possibly members of the jury that determined his guilt.
The
prosecutor never argued that King could get out on the streets and
commit any crimes, let alone murder members of the jury.
Even if the prosecutor may have erred by arguing that King
could get paroled and be back on the streets in less than twentyfive years if not convicted of first degree murder, this argument
was
not
fundamental
error
reviewable
absent
objection
and
preservation. Counsel can only be found ineffective for failing to
raise
an
unpreserved
fundamental,
meaning
error
the
on
appeal
where
the
guilty
verdict
would
not
obtained absent the comment.
(Fla. 2000).
error
have
is
been
Robinson v. Moore, 773 So. 2d 1, 4
There was no question based on the overwhelming
evidence introduced that the jury would convict King of first
degree murder. Thus, any error in the State’s closing argument was
clearly not fundamental and, at worst, harmless.
See Gibson v.
State, 351 So. 2d 948, 950 (Fla. 1977) (stating that the comments
of the prosecutor regarding the deterrent effect of the death
22
penalty were not so prejudicial as to require a new trial and the
defendant was precluded from asserting this argument since he
failed to object to the allegedly improper prosecutorial comments
at trial); Spriggs v. State, 392 So. 2d 9, 10 (Fla. 4th DCA 1980)
(holding that the defendant’s failure to request the court to
rebuke the prosecutor for his misconduct during the trial, together
with the overwhelming evidence of his guilt compels a finding of
harmless error).
Once again no relief is warranted on this claim.
Notwithstanding the foregoing, as this issue could have been raised
in
King’s
prior
habeas
petition,
it
should
be
denied
as
procedurally barred.
Claim VI
The prosecutor did not commit
error in closing argument by
defense counsel.
King’s
next
issue
also
challenges
fundamental
denigrating
unobjected-to
comments
offered during the State’s guilt phase closing argument.
As
previously noted, this claim could have been raised previously and
is
clearly
procedurally
barred
at
this
point.
In
addition,
appellate counsel cannot be found ineffective for failing to raise
an issue which had not been preserved for appeal, and none of the
challenged comments in King’s petition could meet the standard for
fundamental error.
Any appellate issue as to the prosecutor’s comments regarding
defense counsel would not have been successful.
23
As this Court has
repeatedly recognized, attorneys are permitted wide latitude in
their closing arguments.
See Thomas v. State, 748 So. 2d 970, 984
(Fla. 1999); Breedlove v. State, 413 So. 2d 1, 8 (Fla.), cert.
denied, 459 U.S. 882 (1982).
argument.
the
Counsel may advance any legitimate
The prosecutor’s explaining why the jury should reject
theory
of
defense
in
this
case
was
not
presented
in
a
derogatory manner or with inflammatory labels; it was a proper
argument as to why the jury should not be swayed by the defense
that the
investigation
was
flawed.
A
prosecutor
is
clearly
entitled to offer the jury his view of the evidence presented.
Shellito v. State, 701 So. 2d 837, 841 (Fla. 1997) (no error where
prosecutor referred to defendant’s mother as
“either an extremely
distraught concerned mother or ... a blatant liar” since statement
was fair comment on testimony and permissible as to prosecutor’s
view of the evidence), cert. denied, 523 U.S. 1084 (1998).
On
these
facts,
no
deficiency
or
prejudice
has
been
established by counsel’s failure to raise this issue in King’s
direct
appeal.
Once
again
his
claim
must
be
denied.
Notwithstanding the foregoing, as this issue could have been raised
in
King’s
prior
habeas
petition,
it
should
be
denied
procedurally barred.
Claim VII
Appellate counsel was not ineffective for
failing to raise an issue on direct appeal
alleging that Mr. King’s rights were violated
by the State’s ex-parte communications with
24
as
the court and the State’s and Court’s
undisclosed consideration given to state
witnesses in exchange for their testimony.
King next claims that appellate counsel should have raised an
issue regarding an alleged ex-parte communication between the State
and the trial judge during the course of trial.
This same issue
has been presented in King’s recent successive postconviction
motion, and was denied by Judge Schaeffer on January 1, 2002 as
procedurally
barred
and
legally
insufficient
(R.
V4/641-643).
There is no basis for review of this claim in this habeas petition
where this Court will consider the same issue in King’s pending
postconviction appeal.
Furthermore, while the record reflects
sufficient information to put King on notice of a potential claim,
the facts are not developed in the appellate record to demonstrate
that
any
actual
ex-parte
communication
occurred.
Therefore,
appellate counsel did not have a sufficient record to raise this
claim on appeal, and cannot be found ineffective on these facts.
Claim VIII
Mr.
King’s
appellate
attorney
was
not
ineffective for failing to file pleadings
ensuring the preservation of the physical
evidence used against Mr. King at trial.
King also asserts as error his appellate attorney’s failure to
secure preservation of the vaginal washings that were discarded by
the medical examiner’s office sometime between 1977 and 1979. Once
again, no deficiency or prejudice has been demonstrated.
25
First of
all, King cannot even establish that the washings were still in
existence at the time the appeal was taken.
In considering the
merits of a due process claim based on the destruction of this
evidence
as
a
postconviction
issue
below,
Judge
Schaeffer
determined that the evidence was either discarded after being
tested by the medical examiner’s office or within a year or two of
the testing (R. V4/629).
Even if the evidence existed at the time
of the appeal, it is not appellate counsel’s responsibility to
return to circuit court and file pleadings unrelated to a pending
appeal.
There would be no basis to request any action from this
Court because it would not be presenting an action of the trial
court subject to appellate review.
Thus, there is literally
nothing appellate counsel could or should have done in this regard.
Again, no reasonable basis for a finding of ineffective assistance
of appellate counsel has been offered, and King’s claim in this
issue must be denied.
Claim IX
Florida’s death penalty statute is not
unconstitutional.
King’s
claim
that
Florida’s
death
penalty
statute
is
unconstitutional under the reasoning of Apprendi v. New Jersey, 530
U.S. 466 (2000) is without merit.
King alleges that Florida’s
death penalty statute is only constitutional if the particular
aggravating factors are charged in the indictment, submitted to the
26
jury, proven beyond a reasonable doubt, and each aggravating factor
unanimously found by the jury.
This same issue was presented in
King’s recent successive postconviction motion, and denied by Judge
Schaeffer on January 1, 2002 as meritless (R. V/4 639-640).
There
is no basis for review of this claim in this habeas petition where
this
Court
will
consider
postconviction appeal.
the
same
issue
in
King’s
pending
In addition, this claim has already been
repeatedly rejected by this Court, and therefore cannot compel any
relief.
See Brown v. Moore,
800 So. 2d 223 (Fla. 2001); Mann v.
Moore, 794 So. 2d 595 (Fla. 2001);
Mills v. Moore, 786 So. 2d 532
(Fla.), cert. denied, 121 S. Ct. 1752 (2001).
In Mills, this Court
expressly held that Apprendi did not apply to Florida’s capital
sentencing
scheme.
786
So.
2d
at
536-38.
The
claim
is
particularly disingenuous in this case, since King’s death penalty
recommendation
at
his
resentencing
was
in
fact
unanimous.
Therefore, even if his argument was subject to consideration, it
would not provide any basis for relief in this case.
Claim X
Mr. King’s incarceration on death row for
twenty-five years does not constitute cruel
and unusual punishment.
King’s next claim asserts that he cannot now be executed
because of the length of time that he has spent on death row.
This
claim has been consistently rejected by this Court as well as the
27
United States Supreme Court. King cites no authority for rejection
of the clear precedent for denying his claim.
See, Rose v. State,
787 So. 2d 786 (Fla. 2001); Booker v. State, 773 So. 2d 1079, 1096
(Fla. 2000); Knight v. State, 746 So. 2d 423, 427 (Fla. 1998),
cert. denied, 120 S. Ct. 459 (1999); Elledge v. State, 706 So. 2d
1340, 1342, n.4 (Fla. 1997); Hitchcock v. State, 673 So. 2d 859,
863 (Fla. 1996); Hitchcock v. State, 578 So. 2d 685 (Fla. 1990).
In Booker, this Court rejected an identical argument for a
defendant that had spent over two decades on death row.
In denying
the defendant’s claim, the Booker Court relied on its previous
opinion in Knight.
Although Knight makes an interesting argument,
we find it lacks merit. As the State points
out, no federal or state courts have accepted
Knight’s argument that a prolonged stay on
death row constitutes cruel and unusual
punishment, especially where both parties bear
responsibility for the long delay. See, e.g.,
White v. Johnson, 79 F.3d 432 (5th Cir. 1996);
State v. Smith, 280 Mont. 158, 931 P.2d 1272
(Mont. 1996). We also note that the Arizona
Supreme Court recently rejected this precise
claim. See State v. Schackart, 190 Ariz. 238,
947 P.2d 315, 336 (Ariz. 1997) (finding “no
evidence that Arizona has set up a scheme
prolonging incarceration in order to torture
inmates prior to their execution”), cert.
denied, ___ U.S. ___, 119 S.Ct. 149, ___
L.Ed.2d ___ (1998).
Booker, 773 So. 2d at 1096 (quoting Knight, 746 So. 2d at 437).
Although recognizing a denial of certiorari is not an adjudication
on the merits, Justice Thomas’s concurrence in Knight v. Florida,
120 S. Ct. 459 (1999) is enlightening.
28
As opined:
I write only to point out that I am unaware of
any support in the American constitutional
tradition or in this Court's precedent for the
proposition that a defendant can avail himself
of the panoply of appellate and collateral
procedures
and
then
complain
when
his
execution is delayed.
. . . .
It is worth noting, in addition, that, in most
cases raising this novel claim, the delay in
carrying out the prisoner's execution stems
from this Court's Byzantine death penalty
jurisprudence. . . . Consistency would seem
to demand that those who accept our death
penalty jurisprudence as a given also accept
the lengthy delay between sentencing and
execution as a necessary consequence.
See
Coleman v. Balkcom, 451 U.S. 949, 952, 101 S.
Ct. 2031, 68 L. Ed. 2d 334 (1981) (STEVENS,
J., concurring in denial of certiorari)
("However critical one may be of . . .
protracted post-trial procedures, it seems
inevitable that there must be a significant
period of incarceration on death row during
the
interval
between
sentencing
and
execution"). It is incongruous to arm capital
defendants with an arsenal of "constitutional"
claims with which they may delay their
executions, and simultaneously to complain
when executions are inevitably delayed.
Knight, 120 S. Ct. at 459-60 (Thomas, J., concurring).
If this
court were to vacate a death sentence merely because of a delay
caused by a defendant exercising his constitutional rights, it
would be the convicted felon controlling the judicial process, not
the courts.
Through no fault of its own, the State could be
deprived of a lawful sentence.
Accordingly, this court must find
that King’s constitutional rights have not been violated and deny
relief on this issue.
29
Claim XI
The State of Florida’s clemency review process
does not violate the due process or equal
protection clauses of the United States
Constitution and the Constitution of the State
of Florida.
King’s
last
issue
challenges
the
constitutionality
of
Florida’s clemency process. Once again, his claim has already been
rejected,
Glock v. Moore, 776 So. 2d 243 (Fla. 2001), and King has
offered no basis for relief in this issue.
Furthermore, the claim
is without merit as King has cited no relevant facts and has only
alleged conclusory deficiencies with the clemency review process.
As the United States Supreme Court has recognized, a State’s
clemency process requires “minimal” due process, and King has not
offered
any
facts
to
constitutionally flawed.
demonstrate
that
Florida’s
process
is
Compare, Ohio Adult Parole Authority, et
al. v. Woodard, 523 U.S. 272 (1998).
be denied.
30
Accordingly, this claim must
WHEREFORE,
Respondent
respectfully
requests
that
this
Honorable Court DENY King’s Petition for Writ of Habeas Corpus.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
_______________________________
CAROL M. DITTMAR
Assistant Attorney General
Florida Bar I.D. No.: 0503843
______________________________
STEPHEN AKE
Assistant Attorney General
Florida Bar I.D. No.:0014087
2002 North Lois Ave., #700
Westwood Center
Tampa, Florida 33607
Phone:(813) 801-0600
Fax: (813) 356-1292
COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by facsimile and U.S. Regular Mail to Richard
Kiley and April Haughey, Office of the Capital Collateral Regional
Counsel, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619,
and to the Honorable Susan F. Schaeffer, Circuit Court Judge,
Circuit Judge, Sixth Judicial Circuit, 545 First Avenue North, Room
417, St. Petersburg, Florida 33701, this _______ day of January,
2002.
______________________________
COUNSEL FOR APPELLEE
31
CERTIFICATE OF TYPE SIZE AND STYLE
I HEREBY CERTIFY that the size and style of type used in this
brief is 12-point Courier New, in compliance with Fla. R. App. P.
9.210(a)(2).
______________________________
COUNSEL FOR APPELLEE
32